Articles Tagged with FINRA Arbitration attorney

shutterstock_145368937The investment attorneys of Gana Weinstein LLP are interested in speaking with clients of Scott Aabel (Aabel). According to the BrokerCheck records kept by Financial Industry Regulatory Authority (FINRA) Aabel has been the subject of at least 10 customer complaints, one regulatory event, three judgment or liens, and three financial disclosures. The customer complaints against Aabel allege securities law violations that claim unsuitable investments and misrepresentations among other claims involving mostly variable annuity products.

In June 2009, a customer filed a complaint alleging $71,873 in damages stemming from a loss of a living benefit rider for an annuity contract. In September 2007, a customer complained that the performance and fees for a variable annuity were misrepresented to the customer leading to losses of $13,595.

Also in April 2012, the Florida Office of Financial Regulation Division of Securities filed an administrative complaint against Aabel alleging violations of the state’s code and imposed a fine of $70,000.

shutterstock_20354401The Financial Industry Regulatory Authority (FINRA) recently barred broker Derek Weaver (Weaver) alleging that Weaver failed to provide documents and information to FINRA in response to demands made to investigate the broker’s activities. On December 1, 2014, FINRA sent Weaver a request for documents concerning allegations that he participated in a Ponzi scheme. The details concerning the exact nature of the alleged Ponzi scheme and Weaver’s role are not yet fully known.

The allegations against Weaver are consistent with a potential “selling away” securities violation. In the industry the term selling away refers to when a financial advisor solicits investments in companies, promissory notes, or other securities that are not pre-approved by the broker’s affiliated firm. Under the FINRA rules, a brokerage firm owes a duty to properly monitor and supervise its employees in order to detect and prevent brokers from offering such products. In order to properly supervise their brokers each firm is required to establish and maintain written supervisory procedures and implement such policies in order to monitor the activities of each registered representative. Selling away often occurs in environments where the brokerage firms either fails to put in place a reasonable supervisory system or fails to actually implement that system and meet supervisory requirements.

In selling away cases, investors are unaware that the advisor’s investments are either not registered or not real. Typically investors will not learn that the broker’s activities were wrongful until after the investment scheme is publicized or the broker simply shuts down shop and stops returning client calls.

shutterstock_184430498The Financial Industry Regulatory Authority (FINRA) filed a complaint against brokerage firm SWS Financial Services, Inc. (SWS Financial) over allegations that from September 2009, to May 2011, SWS Financial had inadequate supervisory systems procedures to supervise its variable annuity (VA) securities business. Specifically, FINRA alleged that SWS Financial: (1) failed to establish and maintain supervisory systems to supervise its VA securities business in violation of NASD and FINRA Rules; (2) failed to implement rules requiring a registered principal review and approval prior to transmission of a VA application to the issuing insurance company for processing and that a registered principal only approve VA transactions that he or she has determined that there is a reasonable basis to believe that the transaction is suitable for the customer; (3) failed to implement surveillance procedures to monitor a broker’s recommended exchanges of VAs to identify inappropriate exchanges; (4) failed to have policies and procedures to implement corrective measures to address inappropriate VA exchanges; and (5) failed to develop and document specific training policies or programs to ensure that principals supervisors who reviewed VA transactions had sufficient knowledge to monitor the transactions.

SWS Financial is a registered broker/dealer since 1986 and is headquartered in Dallas, Texas. The firm employs 313 registered personnel. From September 2009, to May 2011, SWS Financial derived the majority of its income from its business lines selling equities, mutual funds, variable life insurance or annuities, and municipal securities.

FINRA alleged that from September 2009, to May 2011, SWS Financial derived 16% to 20% of its total revenues from sales of VAs to customers. However, despite this fact, FINRA alleged that SWS Financial failed to establish and implement adequate supervisory systems for this aspect of its securities business. FINRA alleged that the firm’s brokers sold VAs both in branch offices where a registered branch manager was onsite as well as in offices where there was no onsite supervisor. FINRA alleged that the firms procedures required that VA transactions initiated by representatives in branch offices with a branch manager were reviewed and approved by the banch manager and then forwarded to SWS Financial’s home office for final review and approval employees at an affiliated insurance company, Southwest Insurance Agency (Insurance Agency).

shutterstock_175320083In the prior post we discussed the extremely difficult journey an investor may have to go through in order to obtain relevant discovery documents from the brokerage industry in FINRA arbitration. We also discussed how the system is stacked against the investor’s rights and provides incentives to firms to withhold documents. However, a recent FINRA enforcement order provides some hope that the regulatory watchdog will start taking these issues seriously.

In October 2014, FINRA sanctioned Ameriprise Financial Services, Inc. (Ameriprise) and its broker for altering documents and refusing to produce documents until the eve of hearing. FINRA’s action resulted from the discovery tactics employed by Ameriprise and its broker David Tysk (Tysk) in a FINRA arbitration.

In the Ameriprise case, the FINRA arbitrators found the firm’s conduct so egregious that it referred the matter to FINRA’s Member Regulation Department. The arbitration panel found that Ameriprise and Tysk produced documents in an arbitration proceeding without disclosing that Tysk had altered the documents after receiving a complaint letter from a customer. The altered documents were printouts of notes of Tysk’s contacts with the customer having the initials “GR.” Tysk was responsible for detailing his contact with customers in a computer system maintained by Ameriprise.

shutterstock_38114566Many securities arbitration attorneys would agree that discovery abuse in FINRA arbitration is a problem under certain circumstances. A client has a seemingly great and compelling case.  Then the brokerage firm produces its “discovery” but something doesn’t seem right. Documents recording decisions on key dates are missing, there are unexpected gaps in the email record, and in the worst cases your client has produced documents that the firm should have a copy of but for some reason does not. How often discovery abuse happens in FINRA arbitration is unknowable.

However, what is known is that system likely fosters discovery abuse. A recent Reuters article highlighted that arbitrators do indeed go easy on brokerage firm discovery abuse. Why does this happen? The first line of defense against discovery abuse is the arbitrators themselves. But most arbitrators simply expect the parties to comply with their discovery obligations without their input. Moreover, arbitrators loath ordering parties to produce documents against their will and prefer the parties to resolve their own disputes. While these goals are noble they also invite abuse.

So how does an investor ultimately get awarded discovery abuse sanctions if a brokerage firm fails to produce documents? First, the client must move to compel the documents and win the motion over the brokerage firm’s objections. Second, the firm must refuse to comply with the order. Usually the firm will interpret the scope of the order as not encompassing the discovery that was actually ordered or will otherwise declaw the order through claims of “privilege” or “confidentiality.” This leads to a second motion to compel and request for sanctions. Again the investor will have to argue the relevance of the initial request as if the panel never ruled that these documents had been ordered to be produced and the brokerage firm gets a second bite of the apple to throw out the discovery.

shutterstock_188383739The Financial Industry Regulatory Authority (FINRA) sanctioned brokerage firm optionsXpress, Inc. (optionsXpress) concerning allegations that: 1) between March 2007, and March 2012, optionsXpress contracted with a third party service provider referred to as (GBT) to provide options trading coaching services to the firm’s options customers; 2) the firm approved marketing scripts that were used by GBT to sell the coaching program to optionsXpress customers that failed to present a fair and balanced description of the risks and potential benefits of the coaching program; and 3) between April 2011, and July 2011, the firm operated a retail forex business without having first received approval from FINRA to do so.

optionsXpress has been a FINRA firm since August 2000. The firm is primarily an online broker-dealer that specializes in providing customers an online platform to trade options.

FINRA found that under the terms of the firm’s Agreement with GBT coaches were prohibited from advising clients in live trading situations. The agreement provided that GBT coaches are vigorously trained on the absolute prohibition of making buy/sell recommendations to students. However, FINRA found that in implementing the coaching program, GBT’s coaches did not uniformly adhere to this prohibition and in certain instances coaches discussed live trades, specific transactions, or strategies that the customer was considering executing. Even though coaching sessions were prefaced with the disclaimer that coaches were not permitted to make buy, sell, or hold recommendations, FINRA determined that in certain sessions, the “coaching” surpassed mere discussions of specific securities transactions, and rose to the level of buy, sell, or hold recommendations.

shutterstock_178801082The Financial Industry Regulatory Authority (FINRA) sanctioned broker Robert Livingstone (Livingstone) concerning allegations that Livingstone failed to respond FINRA’s request for documents concerning claims that Livingstone deposited a customer’s money into a private company called Newland Strategies.

Livingstone first became registered with FINRA in 1992 as a General Securities Representative with Morgan Stanley DW, Inc. Thereafter, in 2001, Livingstone registered with BB&T Investment Services, Inc. (BB&T). Livingstone remained registered with BB&T until the firm filed a Form U5 that terminated his registration with on October 3, 2013. BB&T stated on Livingstone’s BrokerCheck that a “client alleged she thought she invested 200,000 with BBTIS through her BBTIS rep in February 2013. However, it was deposited into a private company called Newland Strategies by her rep and was told she lost $68,000.”

FINRA alleged that in October 2013, BB&T terminated Livingstone’s registration after the firm investigated a customer complaint against Livingstone alleging participation in a private securities transaction. On March 21, 2014, FINRA investigated the customer complaint against Livingstone and requested documents and information from Livingstone. FINRA stated that Livingstone did not produce the requested documents and information after several requests. It was alleged that on April 24, 2014, Livingstone informed FINRA that he would not comply with requests. As a result of Livingstone’s failure to provide documents and information as required by FINRA Rule 8210, FINRA found that Livingstone violated FINRA Rules 8210 and 2010 and imposed a bar from the financial industry.

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